PERSPECTIVES ON PREDICTIVE CODING

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My second book in late 2016 is a reference text on document review and predictive coding where I served as Editor and contributor of two chapters out of the twenty. PERSPECTIVES ON PREDICTIVE CODING And Other Advanced Search Methods for the Legal Practitioner. The Foreword is by Judge Andrew Peck. My Co-Editors are Jason R. Baron and Michael Berman. This book can be purchased online directly from the publisher, the ABA. You can also call ABA Customer Service at 800-285-2221 Monday-Friday between 9:00 AM and 6:00 PM ET. ABA members get a big discount. It should also be available on Amazon in June 2017, but in the meantime, the ABA has the exclusive.

In Perspectives I share editor duties with Jason R. Baron and Michael Berman, something I have never done before. I usually just drone on and on by myself, but this time I have help from top experts on predictive coding. The lengthy, very complete book on predictive coding has many contributing authors. Perspectives on Predictive Coding is the best reference book available on this subject,and, as an added bonus, it is big enough to stop any size door.

About the Book (an excerpt from Jason Baron’s Introduction)

Each of the three editors of this volume graduated law school in 1980, which has meant that we have been firsthand witnesses to the transformation of legal practice and especially discovery practice during the past few decades. There was a time when discovery meant searching only through boxes containing paper files, where the big case simply meant searching through more boxes in the client’s warehouse.

Discovery did not yet need an “e” as a prefix, and manual searches for relevant documents sufficed. Judge Andrew J. Peck notes this, as well, in his Foreword to this volume. Fast forward to the present, and how the world of lawyering has changed. The present “inflationary” period of information exploding has been built on copying machines and personal computers in the 1970s, e-mail beginning widespread use in the late 1980s, and the opening of the desktop to the Internet and especially the World Wide Web in the 1990s. The pace of change has only continued to accelerate since the turn of the century, with the emergence of social media and mobile devices in the last decade transforming what it means to conduct business. As this book goes to print, we are on the cusp of the Internet of Things, with smart devices proliferating and generating new data streams and new forms of evidence to search.

Today, every lawyer conducting “discovery” in civil litigation needs to confront the fact that—no matter how large or small the case may be—it is insufficient to simply define the search task as being limited to finding relevant documents in traditional paper files. The legal profession lives and breathes in a world of “electronically stored information” (ESI), a term of art introduced into legal practice by virtue of the 2006 amendments to the Federal Rules of Civil Procedure.

But what constitutes our doing a “reasonable” job in finding relevant evidence in a world exploding in data? The initial approach lawyers took (and still take) to confronting large volumes of ESI is to rely on keyword searching, supplemented by manual searches, to cull out relevant and privileged material before a production is made to opposing counsel. Although these “time-tested” approaches have their defenders, simple reliance on manual and keyword searching increasingly is seen as inadequate to the task at hand, both on grounds of accuracy and efficiency, as compared with more advanced search techniques.

The editors of this book are readily willing to stipulate in advance that they have a strong bias in favor of advancing the cause of computer-assisted review and educating the profession on how more advanced search techniques work. In one way or another, they have spent the better part of the last 15 years engaged in initiating and participating in research projects, and academic conferences, joining think tanks, communicating through online media platforms, writing law reviews, authoring e-discovery books, and teaching e-discovery in law and graduate schools, in evangelizing on the topic of how lawyers may conduct “better” searches of electronic evidence using smarter methods than manual and keyword searching. Along the way, we have been fortunate to encounter a number of brilliant lawyers and scholars at the cutting edge of e-discovery and information science, many of whom we are grateful to for their contributions to this volume.

This book is an attempt to catch lightning in a bottle; namely, to provide a set of perspectives on predictive coding and other advanced search techniques, as they are used today by lawyers in pursuit of e-discovery, in investigations, and in other legal contexts, such as information governance. We are painfully aware that the shelf-life of publications such as the present work is not long. Nevertheless, we trust that a cross-section of related—and sometimes differing—perspectives on how today’s advanced search methods at the cutting-edge of legal practice will prove illuminating to a greater legal audience. …

The book is meant to appeal both to practitioners who are seeking knowledge of what predictive coding and other advanced search methods are all about, as well as to those members of the legal community who are “inside the bubble” of e-discovery already and wish to be exposed to the latest, cutting-edge techniques. We would like to imagine that the book may also be read by lawyers who do not consider themselves litigators or e-discovery practitioners, but who wish to apply a knowledge of smart analytics in other legal contexts.

The reader should be aware that given the relative novelty of predictive coding and other advanced search methods, there have been and will continue to be disagreements over what constitutes “best practices” in the space, and the editors of course have their own preferences and biases. However, the book attempts to be inclusive of a range of views, not always necessarily our own. …

As this book goes to print, there appear to be voices in the profession questioning whether predictive coding has been oversold or overhyped, and pointing to resistance in some quarters to wholesale embrace of the types of algorithmics and analytics on display through-out this volume. Notwithstanding these critics, the editors of this volume remain serene in their certainty that the chapters in this book represent the future of e-discovery and the legal profession as it will come to be practiced into the foreseeable future, by a larger and larger contingent of lawyers. Of course, for some, the prospect of needing to be technically competent in advanced search techniques may lead to considerations of early retirement. For others, the idea that lawyers may benefit from embracing predictive coding and other advanced technologies is exhilarating. We hope this book inspires the latter feelings on the part of the reader.

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TABLE OF CONTENTS

FOREWORD: JUDGE ANDREW PECK

INTRODUCTION: Jason R. Baron

SEARCHING FOR ESI: SOME PRELIMINARY PERSPECTIVES

Chapter 1: The Road to Predictive Coding: Limitations on the Defensibility of Manual and Keyword Searching. Tracy D. Drynan and Jason R. Baron.

Chapter 14: On the Place of Measurement in E-Discovery. Bruce Hedin, Dan Brassil, and Amanda Jones

Chapter 15: A Modest Proposal for Preventing e-Discovery Standards from Being a Burden to Practitioners, Clients, the Courts, or Common Sense. Gilbert S. Keteltas, Karin S. Jenson, and James A. Sherer.

About the Blogger

Ralph Losey is a practicing attorney and shareholder in a national law firm with 50+ offices and over 800 lawyers where he is in charge of Electronic Discovery. All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.

Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of Electronic Discovery Best Practices, and e-Discovery Team Training, an online education program that arose out of his five years as an adjunct professor teaching e-Discovery and Evidence at the UF School of Law. Ralph is also publisher and principle author of this blog and many other instructional websites.

Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using artificial intelligence, and also in general AI Ethics. issues. Ralph was the only private lawyer to participate in the 2015 and 2016 TREC Recall Track of the National Institute of Standards and Technology and prior to that competed successfully in the EDI Oracle research.

Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management. Ralph also received the "Most Trusted Legal Advisor" industry award for 2016-17 by the Masters Conference. His full biography may be found at RalphLosey.com.

Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.

Sedona Principles 3rd Ed

1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.

2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.

4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.

5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.

6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.

9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.

10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.

12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.

13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.

14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.